This exam was submitted by Sarah Hair as part of The Verdict's Law Review series. Check out our other example essays here.
“The term ‘policy’ is amorphous, and that is why the parameters of negligence are so unclear”. Do you agree with this statement?
Policy has taken centre-stage in numerous noteworthy judgments steering the course of negligence, and thus has been oft exposed to academic scrutiny. Policy reasoning may also be less overt, given its integral nature in elements of liability, operating subconsciously within judicial intuition and discretion. This essay will first analyse whether the term policy is amorphous by analysing its diverse application throughout negligence, before turning to whether it has indeed created a lack of clarity in the parameters of negligence.
I. AMORPHOUSNESS IN POLICY REASONING?
Preliminarily, it is necessary to consider how ‘policy’ is defined, or what it refers to – and immediately, academics diverge. Hylton (2016) suggests policy has two main sources, economic reasoning and moral reasoning, and provides either a positive or normative theory of law; the former explaining the law as it is, and the latter describing an ideal legal system. Conversely, Dworkin (1977) distinguishes ‘policy’ from ‘principle’, suggesting the latter concerns standards of morality, fairness and justice, whereas policy refers to collective goals typically economic or political in nature. For the practical purposes of this essay, policy will be regarded a ‘catch-all’ phrase describing considerations that are non-legal, i.e. not based on recognised legal principle or precedent (Conaghan and Mansell, 1999).
Policy rears its enigmatic head in numerous areas of negligence. Fundamentally, imposition of a duty of care incorporates policy elements, and has done so throughout its development. Lord Wilberforce's two-stage test in Anns v Merton London Borough Council (1978) considered firstly whether proximity and reasonable foreseeability existed between the alleged wrongdoer and plaintiff; and secondly, whether policy reasons could negate or limit liability – a caveat to batten the floodgates. The modern three-stage test for duty of care, per Caparo Industries v Dickman (1990), retains this policy consideration in the third criterion requiring it be ‘fair, just reasonable’ to impose a duty. Under this heading, courts have considered policy facets including loss allocation (who can afford to bear loss), impact in terms of deterrence and standards of practice, and whether imposing liability will incur an influx of cases with subsequent impact on courts and insurance costs.
Hill v Chief Constable of West Yorkshire (1989) illustrates significant policy restriction on duty of care: the House of Lords warned imposition of liability could cause police functions to be carried out in a detrimentally defensive frame of mind. McIvor (2010) notes following this decision the standard judicial response to allegations of police negligence has been to brandish this policy card in denying duty of care. In Osman v United Kingdom (1998), such blanket immunity as afforded by Hill was deemed incompatible with ECHR Art 6, curtailing the extensivity of this policy consideration. Policy concerns also underly imposition of control mechanisms on secondary victims, in governing who can claim for psychiatric injury; in Page v Smith (1996) Lord Lloyd stated that absence of control:
…would open the door too wide, and encourage bogus claims…It is for this reason that the courts have, as a matter of policy, rightly insisted on a number of control mechanisms. Otherwise, a negligent defendant might find himself being made liable to all the world.
Policy is double-edged, however, in that it may also be used to justify widening of liability. Concerning causation, policy is central to departure from the strict ‘but for’ test in cases where tortious creation of ‘material increase in risk’ is equated to a material contribution to the harm suffered. Fairchild v Glenhaven Funeral Services (2003) asserts in such cases concerning mesothelioma there exists strong policy argument in favour of compensating victims of grave harm, and the perceived injustice of imposing liability on the employer is outweighed by the injustice of denying a victim redress.
Objectivity in standard of care as per Nettleship v Weston (1971) also contains underlying policy justification: Lord Denning held that ‘morally the learner driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her’. This rationale might be paralleled with the ‘deep pockets’ theory behind employers’ vicarious liability: that the employer is presumably in a better financial position to remediate damage, an idea grown from public policy and ‘social convenience’ (ICI v Shatwell (1965)).
Furthermore, the standard of care asks what was objectively reasonable in the circumstances, which includes social value of the activity. Thus per Tomlinson v Congleton BC (2003), what amounts to reasonable care depends not only on likelihood or seriousness of injury, but also the social value of the activity giving rise to risk, and cost of preventative measures. Correspondingly, the Compensation Act 2015 s 1 states that courts, in determining whether adequate preventative steps or precautions were taken, must consider whether requiring said precautions would prevent or discourage a desirable activity.
The foregoing illustrations are the furthest from exhaustive. Given this multiplicity of policy utilisation and versatility of impact, ‘policy’ is arguably intrinsically amorphous. It appears to shapeshift as factual matrices and ideas of justice require. Lord Nicholls in Fairchild lamented the scope of liability as ‘afflicted with linguistic ambiguity’; a finding Lord Neuberger (2017) suggests is unsurprising ‘as almost all aspects of tort law, above all negligence, are based on policy’.
II. LACK OF CLARITY IN THE PARAMETERS OF NEGLIGENCE?
It hardly need be stated that application of the parameters of negligence is not an exact science. The contentious issue is whether this constitutes an injurious lack of clarity and certainty. In the words of Lord Bingham (2010):
The law must be accessible and so far as possible intelligible, clear and predictable…Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion.
Correspondingly, Lord Brown in Sienkiewicz v Grief (2011) cautions that circumvention of rocks of uncertainty has the capacity to drastically increase scope for what hitherto have been rejected as purely speculative compensation claims. Nonetheless, Oliphant (2013) argues insistence on unyielding certainty is potentially counter-productive to achieving such, in that rigid rules necessitate exceptions and qualifications which complexify the law. He argues exercise of judgement is inherent in the judicial role; appellant courts should set parameters for flexible assessment of relevant factors, rather than mechanical rules. Clarity is to be found in striving after certainty that is genuine and consistent with broad principles, rather than certainty that is ‘patchwork’ and ‘spurious’ (Cardozo, 1924).
Notwithstanding, Oliphant deems the extent of judicial reliance on policy excessive, suggesting it contributes to degeneration of law into a collection of fact-specific rules, disregarding principle or coherence. Linde (1994) likewise condemns policy for inviting public politics into courts and torts, concluding ‘unless a court can attribute policy to a politically accountable source, it must resolve novel issues of liability within a matrix of statutes and tort principles’, to preserve separation between judiciary and legislature. According to Stevens (2007), judges lack the political jurisdiction and technical competence to make the economic and social assessments required by policy questions.
However, considering the ‘quasi-legislative’ function of caselaw and its entrenchment, the practicability of such arguments is dubious, requiring a questionable line to be drawn between matters suitable for judicial deliberation and those deemed ‘extrajudicial’. It is difficult to even differentiate where policy ends and principle starts. Furthermore, it is something of an artificial distinction to deem judges competent arbitrators of morality and justice, but not policy. Lord Neuberger (2017) reasons:
[P]olicy may often be less reliable than a principle at indicating a specific outcome in a specific case. But policy may often be more reliable in the sense that it is less prone to founder on exceptions or turn out to be unsound. And, since principle is based on policy, there can be said to be less of a risk of losing the thread if one applies principle rather than policy.
Finally, it is a serious oversimplification to suggest lack of defined parameters arises purely from policy’s amorphousness. Perhaps due to the aforementioned intrinsic need for flexibility, holes might be poked in the clarity of practically every tool governing liability in negligence. Teff (1988) highlights the concern proximity is ‘no more than a rhetorical device which conceals more than it reveals’, noting Lord Oliver has interchangeably dubbed it a label for ‘reasonableness, ‘pragmatism’, and ‘policy’. Porat and Stein (2001) argue philosophically complex factual matrices themselves are generative of uncertainty, e.g. the ‘two hunters case’ (Summers v Tice (1948)).
Whilst academics disagree on the nature of policy and its legitimacy as a tool in judicial reasoning, a common ground appears to be that its immoderation may generate uncertainty and lack of clarity. Whilst public policy is a very unruly horse, ‘with a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles’ (Richardson v Mellish (1824); Enderby Town FC v The Football Association (1971). The multipurpose nature of policy utilisation in negligence has permitted elastic evolution of its rules. Necessary flexibility inevitably invokes a degree of ambiguity; a balance is to be struck between the competing demands of pragmatism and purism.
Legislation & International Law
Compensation Act 2015
European Convention on Human Rights
Anns v Merton London Borough Council  AC 728
Caparo Industries plc v Dickman  2 AC 605
Enderby Town Footbal Club v The Football Association  Ch 591
Fairchild v Glenhaven Funeral Services Ltd  1 AC 32
Hill v Chief Constable of West Yorkshire  AC 53
Imperial Chemical Industries Ltd v Shatwell  AC 656
Nettleship v Weston  EWCA Civ 6
Osman v UK App no 87/1997/871/1083 (ECtHR, 28 October 1998)
Page v Smith  AC 155
Richardson v Mellish (1824) 2 Bing 229
Sienkiewicz v Grief  UKSC 10
Summers v Tice 199 P.2d 1 (Cal. 1948)
Tomlinson v Congleton Borough Council  1 AC 46
Bingham T, The Rule of Law (Allen Lane 2010)
C McIvor ‘Getting Defensive about Police Negligence: The Hill Principle, the Human Rights Act 1998 and the House of Lords’ (2010) 69(1) CLJ 133
Cardozo BN, The Growth of the Law (New Haven, Yale University Press 1924)
Conaghan J and Mansell W, The Wrongs of Tort (Pluto Press 1999)
Dworkin R, Taking Rights Seriously (Duckworth 1977)
Hylton K, Tort Law: A Modern Perspective (Cambridge University Press 2016)
Linde H, ‘Courts and Torts: “Public Policy” Without Public Politics?’ (1994) 28(3) Val. U. L. Rev. 821
Neuberger D, ‘Implications of Tort Law Decisions’ (Address to Northern Ireland Personal Injury Bar’s Inaugural Conference, County Down, 13 May 2017)
Oliphant K, ‘Against Certainty in Tort Law’ in Pitel S, Neyers J and Chamberlain E (eds) Tort Law: Challenging Orthodoxy (Hart Publishing 2013)
Porat A and Stein A, Tort Liability Under Uncertainty (OUP 2001)
Stevens R, Torts and Rights ( OUP 2007)
Teff H, ‘Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries’ (1988) 57(1) CLJ 91
Featured Image Credit: Craybeck Law LLP